Muller v. Shredding
| Decision Date | 09 February 2010 |
| Docket Number | No. 09-CA-869.,09-CA-869. |
| Citation | 33 So.3d 285 |
| Parties | Beatrice A. MULLERv.A-1 MOBILE SHREDDING, L.L.C., Stanley J. Pausina, John Doe, Jim Doe and ABC Insurance Company. |
| Court | Court of Appeal of Louisiana — District of US |
J. McCaleb Bilbro, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
Scott W. Smith, Stephen M. Chouest, Attorneys at Law, Metairie, LA, for Plaintiff/Appellee.
Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
Defendant, Colony Insurance Company (Colony), commercial general liability (CGL) insurer for defendant, A-1 Mobile Shredding, L.L.C. (A-1), appeals the trial court's grant of plaintiff's motion for partial summary judgment, which found that Colony's CGL policy provided coverage for plaintiff Beatrice A. Muller's injuries. We also consider here Colony's writ No. 09-C-818, which involves the denial of Colony's cross motion for summary judgment, which sought a ruling that its policy's automobile exclusion applied, precluding coverage for Mrs. Muller's injuries.1
For the following reasons, we affirm the trial court's judgment on appeal. Likewise, we deny the relief sought in Colony's writ application.
Mrs. Muller contracted with A-1 to shred the papers of her late husband. A-1's business was conducted in the back of a converted box truck, which traveled to its customers' locations and then parked there while conducting its shredding activities. The shredding equipment was located inside of the box on the back of the truck and was bolted to the body of the truck. All shredding was conducted inside of the box. The shredding equipment was powered by a generator, not the truck's engine. The operation of the shredding equipment required that the box be ventilated, which was accomplished through a large exhaust fan that also required that a side door on the box remain open during shredding operations.
A-1 came to Mrs. Muller's home on April 8, 2008. The truck parked in front of her house with the engine turned off, the usual practice. A-1's two employees went onto Mrs. Muller's property and retrieved boxes of papers to be shredded and moved them to the truck. The day was windy. The side door on the box that was required to be open for ventilation purposes during shredding operations was secured open by a strap connecting the door latch and the side mirror mount on the truck. Mrs. Muller, who was 72 years old, was injured as she approached the truck with an additional box of papers to be shredded. Possibly because of the wind, the strap holding the side door open became loose or disconnected, allowing the door to swing free and into Mrs. Muller, knocking her to the ground next to the truck. She fractured her hip, which required surgery and physical therapy. This suit followed.
Plaintiff filed a motion for partial summary judgment, seeking a declaration that coverage for the incident in question was provided by the Colony CGL policy. Colony filed a cross motion for summary judgment, seeking a declaration that coverage was excluded under its policy by virtue of the automobile exclusion contained therein. The motions were heard together on September 14, 2009. The trial court ruled from the bench in favor of Mrs. Muller, finding coverage under the Colony CGL policy under the “unique facts” of the case. The trial court, in a separate judgment, denied Colony's cross motion for summary judgment. Colony's timely appeal and writ application followed.
An appellate court reviews a district court's decision to grant a motion for summary judgment de novo, using the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. Summary judgment shall be rendered if there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). A summary judgment may be rendered on the issue of insurance coverage alone, although there is a genuine issue as to liability or damages. See LSA-C.C.P. art. 966(E).
When the issue before the court on the motion for summary judgment is one on which the party bringing the motion will bear the burden of proof at trial, the burden of showing there is no genuine issue of material fact remains with the party bringing the motion. See LSA-C.C.P. art. 966(C)(2); Buck's Run Enterprises, Inc. v. Mapp Const., Inc., 99-3054 (La.App. 1 Cir. 2/16/01), 808 So.2d 428, 431. An insurer seeking to avoid coverage through summary judgment bears the burden of proving some exclusion applies to preclude coverage. See Smith v. Reliance Ins. Co. of Illinois, 01-888 (La.App. 5 Cir. 1/15/02), 807 So.2d 1010.
An insurance policy is a contract between the parties and should be construed employing the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. Words and phrases used in a policy are to be construed using their plain, ordinary, and generally prevailing meaning, unless the words have acquired a technical meaning. See LSA-C.C. art. 2047. Where the language in the policy is clear, unambiguous, and expressive of the intent of the parties, the agreement must be enforced as written. See LSA-C.C. art. 2046.
The purpose of liability insurance is to afford the insured protection for damage claims. Policies therefore should be construed to effect, and not to deny, coverage. Thus, a provision which seeks to narrow the insurer's obligation is strictly construed against the insurer, and if the language of the exclusion is subject to two or more reasonable interpretations, the interpretation which favors coverage must be applied. Reynolds, 634 So.2d at 1183. However, subject to the above rules of interpretation, insurance companies have the right to limit coverage in any manner they desire, so long as the limitations do not conflict with statutory provisions or public policy. Id. The rule of strict construction does not authorize a perversion of language or the exercise of inventive powers for the purpose of creating an ambiguity where none exists. Doiron v. Louisiana Farm Bureau Mut. Ins. Co., 98-2818 (La.App. 1st Cir.2/18/00), 753 So.2d 357, 363.
On appeal, Colony argues that the trial court did not correctly apply Louisiana law regarding the construction of insurance policies; and specifically, that Mrs. Muller's motion for summary judgment was premised entirely upon Endorsement U159-0702 to the Colony policy. Colony argues that the trial court's misinterpretation of this endorsement had the effect of rendering inoperative the automobile exclusion included in A-1's GCL policy.
Section I(1)(b) of Colony's General Liability Coverage policy provides:
b. This insurance applies to “bodily injury” and “property damage” only if:
(1) The “bodily injury” or “property damage” is caused by an “occurrence” that takes place in the “coverage territory”;
(2) The “bodily injury” or “property damage” occurs during the policy period; and
(3) Prior to the policy period, no insured listed under Paragraph 1. of Section II-Who Is An Insured and no “employee” authorized by you to give or receive notice of an “occurrence” or claim, knew that the “bodily injury” or “property damage” had occurred, in whole or in part. If such a listed insured or authorized “employee” knew, prior to the policy period, that the “bodily injury” or “property damage” occurred, then any continuation, change or resumption of such “bodily injury” or “property damage” during or after the policy period will be deemed to have been known prior to the policy period.
Endorsement U159-0702 of Colony's GLC policy, at issue here, provides:
A. SECTION I-COVERAGES, COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY, 1. Insuring Agreement, b. is amended and the following added:
(4) The “bodily injury” or “property damage” is caused by or results from the business described in the Schedule.
ALL OTHER TERMS AND CONDITIONS OF THE POLICY REMAIN UNCHANGED.
In light of the above-quoted policy provisions, Endorsement U159-0702 adds a fourth condition to the three coverage prerequisites set out in Section I(1)(b) of the policy's Commercial General Liability Coverage Form, that the “bodily injury” or “property damage” be caused by or result from the “PAPER SHREDDING AND RECYCLING” business described in Endorsement U159-0702's Schedule.
Colony argues that the trial court's misinterpretation of this endorsement somehow reads out or renders inoperative the following “auto” exclusion in its policy:
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